In each of these cases, the defendants were under investigation for civil or criminal liability under the federal income tax laws. The defendants retrieved documents prepared by their respective tax accountants and transferred the documents to their respective attorneys to assist in their defenses. Subsequently, the government served summonses on the attorneys directing them to produce the documents, who refused to comply. The government then brought enforcement actions.
Whether documents delivered by the defendant to his attorney are protected by the self-incrimination clause?
No. Compelled production of the documents from the attorneys does not implicate whatever Fifth Amendment privilege the defendants may have enjoyed themselves.
The Fifth Amendment may have precluded a subpoena from compelling the defendants to produce the documents while the documents were in their possession. However, enforcing the subpoena against another does not violate this privilege. Such action in no way would compel the defendant to be a “witness” against himself. See Couch v. United States. The fact that the attorneys were agents of the taxpayers does not change this result.
The attorney-client privilege applies to documents in the hands of a client that would have been privileged in the hands of the attorney. However, the Fifth Amendment would not protect the defendants from producing these documents. The government could have secured them through the use of a search warrant. Production of the documents themselves does not involve incriminating testimony. The Fifth Amendment does not prohibit the compelled production of all incriminating evidence. It only prohibits compelling the accused to make a testimonial communication that is incriminating. However incriminating the contents of the documents might be, the act of delivering them to the government under order does not involve testimonial selfincrimination.
425 U.S. 391, 96 S. Ct.1569 (1976)